MITHU SINGH Vs. STATE OF RAJASTHAN AND OTHERS

JUDGEMENT

(1.) This special appeal is directed against the order dated 5.8.1993 passed by the learned Single Judge whereby the appellant's Writ Petition No. 3916/1993 under was dismissed.

(2.) The appellant was initially appointed as an LDC in the 10th Battalion, RA.C. (IR) vide order dated 12.9.1993 passed by the respondent No. 3 i.e. Commandant, 10th Battalion, RA.C. (IR), Bikaner. The petitioner-appellant moved an application on 17.1.1990 that according to the Government circular dated 16.11.1989, persons who were appointed as LDCs between the period 1.4.1980 to 31.12.84 on temporary basis could be given regular appointment after passing the performance test. The appellant requested for his performance test and the respondent No. 3 i.e. the Commandant who is the appellant's appointing authority, sent a letter on 19.1.1990 to the respondent No. 2 for supplying a copy of the circular dated 16.11.1989. On 6.2.91, the respondent No. 3 called upon the appellant to appear in the performance test. The appellant appeared in this performance test on 6.2.1991 and the result was declared on 7.2.1991 whereat the appellant was declared to be successful. An order dated 15.2.1991 was then issued confirming the appellant on the post of LDC from 1.3.1990. This order is on record as Annexure-4. While the appellant was so continuing as LDC, he moved an application on 25.9.1991 to the respondent No. 2 i.e. Dy. Inspector General of Police, RAC Range, Jaipur, through proper channel, for his promotion to the post of UDC. This application was forwarded by respondent No. 2 vide his letter dated 27.9.1991. The respondent No. 2 sought the factual report with regard to the appellant from respondent No. 3 and the respondent No. 3 vide his letter dated 7.12.1991 sent the factual report along with the service book of the appellant. On 31.5.1993, the respondent No. 2 issued an order calling upon the respondent No. 3 to withdraw his order dated 15.2.1991 by which the appellant was given regular appointment on the post of LDC and was confirmed w.e.f. 1.3.1990. Reliance was placed on sub-rule (3) of Rule 25 of the Rajasthan Subordinate Offices Ministerial Staff Rules, 1957 (hereinafter referred to as 'the Rules of 1957') according to which the performance test is to be held by the Head of the Department. The date 7.7.1993 was fixed for holding such performance test at which the appellant was required to appear. At this juncture, the present appellant instead of appearing in the aforesaid examination on 7.7.1993 filed the writ petition on 2.7.1993 and the same was dismissed by the learned Single Judge vide his order dated 5th Aug., 1993 summarily.

(3.) Aggrieved from this order dated 5.8.1993 the present appeal has been filed under section 18 of the Rajasthan High Court Ordinance, 1949. Whereas the writ petition has been dismissed without notice to the respondents in the writ petition, the respondents have filed a reply to the writ petition in the special appeal Itself. There appears to be no dispute and it is also made out from Annexure-6 that the present appellant was appointed as a Lower Division Clerk on 12.9.1983 by the Commandant. It is also not in dispute that the appellant had passed the performance test held by the Commandant i.e. respondent No. 3 on 6.2.1991 and on that basis, the order with regard to his confirmation was issued on 15.2.1991 w.e.f. 1.3.1990, and the impugned order dated 31.5.1993 (Anx. 7) requiring the respondent No. 3 (Commandant) to cancel the order of appellant's confirmation on the post of L.D.C. had been passed without giving any action inspired notice to the appellant before passing the order dated 31.5.1993 (Annexure-7)